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Why is Omar Khadr still in jail?

The Harper government unleashed another spiel of melodrama over Omar Khadr last week, when Corrections Canada officials asserted that no media interview of Khadr could take place without extraordinary security measures, including a prison lockdown. (Several media organizations are suing Ottawa for the privilege of interviewing Khadr in the first place.)

For years, our federal administration has treated Khadr as though he were a uniquely pernicious supervillain—repeatedly delaying his repatriation to Canada before relegating him to a maximum-security prison. His security level was finally downgraded last year, from maximum to medium, after a ruling by the Alberta Court of Appeal clarified his status as a young offender.

The government’s histrionics seem particularly misplaced, since, if justice were served, Khadr would be a free man by now.

Let’s revisit the facts.

In 2002, when Khadr was 15, a group of U.S. soldiers found him crouched near a pile of rubble in the village of Ayub Kheil in eastern Afghanistan. A firefight had just taken place involving the American sentries, Afghan security forces, and local militants in a residential compound, which escalated to the point where the Americans called in air support. In the course of the battle, a grenade explosion severely wounded U.S. soldier and medic Christopher Speer, who died soon afterward. However, no one who survived the confrontation, with the possible exception of Khadr, can positively identify the person who threw that grenade.

Khadr had already been injured by shrapnel, when a U.S. soldier shot him twice in the back on sight. His captors then transported him to a field hospital at Bagram Air Force Base for medical treatment and, following a period of convalescence, he was detained, interrogated, and transferred to the U.S.-controlled offshore penal colony at Guantanamo Bay, Cuba. After eight years in custody without trial, he pleaded guilty to the allegations against him, which included the “murder” of Speer (even though Speer was a member of an occupying army whose death occurred during a firefight), planting of land mines to target Allied convoys, and material support for terrorism. He received an eight-year sentence, with no credit for time served during his indefinite detention.

Crucially, one condition of the agreement was the promise of repatriation. However, the Harper government dragged its feet, obliging Khadr to remain in U.S. custody for an additional two years.

In 2013, Khadr filed a law suit against the Harper regime, alleging that it turned a blind eye to the violations of his rights—including torture. (Among other things, he was subjected to sleep deprivation, physical and mental abuse, and extended periods of solitary confinement.) He identified the opportunity to escape Guantanamo as a key motivating factor in his decision to enter a guilty plea, maintains that he has no memory of having thrown the grenade that killed Speer, and says U.S. officials concocted the plea agreement in its entirety.

Was it the strength of the evidence against Khadr that laid the groundwork for the plea deal? This hardly seems plausible. As mentioned above, Khadr was alleged to have killed a U.S. army medic with a grenade, but no eyewitnesses happened to see him throw it.

Another piece of “evidence” commonly cited, is a video in which Khadr appears to be assembling improvised explosive devices (IEDs). If one assumes that the intent of Khadr or his associates was to violate the laws of war by targeting civilians with said explosives—hardly a safe assumption—he was 15 years old at the time the video was recorded, and there is no evidence linking him directly to attacks against either civilian or military targets.

(On a side note, the moral indignation of the U.S. and Canadian governments on this issue is curious, given that the U.S. Central Intelligence Agency outfitted Pashtun tribesmen with anti-aircraft missile launchers, and provided them with plastic explosives, detonators, and explosives training, in order to frustrate a Soviet invasion of Afghanistan during the 1980s. It seems the same people the U.S. government labeled “freedom fighters” when they resisted Soviet occupation, are deemed illegitimate combatants or “terrorists” when they employ similar tactics to resist American/Western occupation.)

Even if one assumes (implausibly, given the dearth of evidence) that Khadr would have been found guilty of murder in Canada, what sort of punishment might he have received? The maximum youth sentence for first-degree murder in Canada is 10 years, with a maximum of six years in custody.

Now consider some of the other factors. Khadr chose to plead guilty—a decision that, in Canada, may have elicited a more lenient sentence. In our country, it is customary (despite the efforts of the Harper government through its Truth in Sentencing Act) for judges to allot credit, on a discretionary basis, for time spent in pre-trial detention. Khadr received no credit whatsoever for his time at Guantanamo prior to the plea deal, and the rights of habeas corpus, a speedy trial, and the option of trial-by-jury were not accorded him. Canada’s Youth Criminal Justice Act includes a provision that the identity of minor offenders not be publicly disclosed—Khadr clearly enjoys no such protection. Finally, it is fair to assume that few Canadian suspects are subjected to torture, psychological abuse, or severely degrading treatment during pre-trial detention. At Guantanamo, Khadr experienced all three.

What accounts for the Harper government’s aversion to according Khadr the rights to which he is legally entitled? A number of theories have been advanced over the years, and I would suggest that the following interrelated points are especially pertinent:

Racism/Islamophobia: Khadr is regarded as a “special” threat because he is physically intimidating to those individuals in whom a lifelong suspicion of brown people has been inculcated. As if that weren’t enough, he is Muslim, and thus extraordinarily susceptible to “radicalization.” (At least, this is what Islamophobes would lead us to believe.) The fact that his father was a jihadi who may have “indoctrinated” his son—a detail with no bearing on the question of justice for Omar Khadr—is an additional source of anxiety nonetheless.

Khadr’s is a high-profile case that allows the Conservative Party to pander to the faithful: The longtime defence counsel for Khadr, Dennis Edney, has suggested this on many occasions, and he is likely correct. One of the traditional bastions of support for the Harper Conservatives is the “tough on crime” vote—chiefly, Canadians who believe our criminal justice system is not sufficiently penal. In addition, prominent Conservatives, and Harper in particular, are fond of the intellectually vacuous notion that the people of the free world are at war with nihilistic “terrorists” committed to the destruction of freedom. In many ways, Khadr epitomizes both nostrums simultaneously—thus, from a political standpoint, the Conservatives feel compelled to show him as little clemency as they feasibly can.

The Pavlovian effect of the word “terrorist”: Khadr is no ordinary criminal—he is a “terrorist.” When state officials invoke the words “terrorist” or “terrorism,” a marked emotional escalation in the response of the mainstream media and the political establishment usually follows. The word “terrorism” has the effect of instilling fear and suppressing critical thinking, and more importantly, inducing citizens to place an inordinate, almost childlike faith in government, until the “terrorist” threat is defused. Little wonder, then, that so many elected officials employ “terrorism” as a rhetorical tool for manufacturing consent. Any display of leniency toward Khadr would be inconsistent with this paradigm.

Unfortunately, Khadr has become a poster child for the erosion of civil rights—for Muslims in particular—that characterizes the 21st-century War on Terror. We can only hope that a media interview with him (if the Harper government ever allows it) would shed some much-needed light on the subject.

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2 thoughts on “Why is Omar Khadr still in jail?”

Thanks so much for your essay on Omar Khadr. So glad it is on the Free Omar Khadr website for others to read.
I wanted to comment on your reference to Speer as a medic. Yes, it’s true that Speer as a member of an elite combat group received medic training, however when he attacked the compound he wasn’t acting as a medic. In fact the very surprising bit of new information I picked up was that Speer was dressed in Afghan garb and wearing a turban when he attacked and was killed. This information was offered by Paul Koring, Globe and Mail correspondent based in Washington.
The Harper government always demonizes Khadr by saying that he killed a medic. We know that information is incorrect as killing a medic is a true war crime…as opposed to the new ones the US invented in 2006 and not recognized internationally. Khadr was never charged by the Military Commission with killing a medic but only a special forces soldier. Here is the link to Koring’s article http://www.theglobeandmail.com/news/national/omar-khadr-appeals-ruling-that-denied-his-transfer-from-federal-prison-to-jail/article15312048/ and the quote: “After U.S. warplanes largely destroyed the compound with 250-kilogram bombs, ground forces stormed the ruins. Sergeant Christopher Speer, helmetless and wearing Afghan garb, was killed by a grenade blast. Sgt. Speer, a qualified medic, was part of assault team when he suffered fatal head wounds”.

While I am not an expert in international laws of war, it does raise questions that Speer wasn’t dressed as a soldier and perhaps was himself an unlawful combattant at the time.

You raise a legitimate point, and I agree there’s reason to question whether Speer was a lawful combatant at the time he was killed. (I hadn’t considered that when I wrote the essay.) Speer was accompanying a group of U.S. soldiers in military uniform who were clearly heavily armed and engaged in combat, so the “Khadr murdered a medic!” claim is misleading on that ground too — by no means could Speer be considered a civilian. In any event, the evidence against Khadr is paltry, and I suspect it would not even have been sufficient to lay charges, had his case come before a Canadian Crown prosecutor.